A Quick Look at Officer and Prosecutorial Discretion

The recent death of Jordan Neely, and the subsequent charges brought against former United States Marine, Daniel Penny, provide a good example of how the legal system functions. Law enforcement officers have a lot of discretion in the arrests they make. Then, even when an officer makes an arrest, prosecutors have discretion to bring charges against the arrestee, or drop the charges and let the person go.

This post isn't focusing on the legality of Penny's actions, although I certainly have my opinion. Instead, I thought the incident provided a good example that helps to illustrate how discretion in the criminal justice system works practically.

Penny and others restrained Neely, who witnesses say was harassing and attacking other passengers on the subway. After several minutes of struggling, Neely died. Many were upset that the Police did not arrest Penny or the others involved in restraining Neely on the spot. Others voiced anger when the NY District Attorney charged Penny with felony second-degree manslaughter in Manhattan's district court.

Officer Discretion—

The New York Police Department responded, investigated, took witness statements, processed the scene firsthand, and decided not to arrest Penny or anyone else involved in the incident.

Sometimes, the police won't arrest a suspect because the initial investigation shows they did not commit a crime. Other times, police hold off on arresting a suspect because they still need to perform follow-up investigations. This could be contacting witnesses who left the scene, obtaining surveillance video not initially available, etc. 

Some investigations take time, and when police arrest someone, they only have a certain amount of time before they must appear in court and present their probable cause. So if they haven't quite solidified the investigation, and the suspect isn't violent, known to police and not likely to leave the area, the police may hold off on making the arrest.

In big cases, police sometimes don't want to make an arrest because they don't want the suspect to lawyer up. Questioning procedures change a bit when a suspect is in custody. Police may want to see what a suspect does following the crime, which may or may not connect them to the crime.

In other words, it's important that police have discretion.

Prosecutorial Discretion—

A few days after the incident, Manhattan district attorney, Alvin Bragg, filed a felony complaint against Penny. Bragg exercised prosecutorial discretion.

As an ethical rule, prosecutors should only bring charges against suspects when they believe they can secure a conviction based on the evidence they have. That is a much higher standard than simply believing a suspect is guilty of the charges.

Trying a case costs money and takes resources and time. Additionally, so many arrests come into a prosecutor's office that they can't take every case to trial.

Photo- AP Photo/Seth Wenig, File

However, most District Attorney positions are politically connected. Which means sometimes there is a bigger agenda than simply prosecuting a bad guy. A prosecutor can bring a case against someone to set an example for others, or could deploy the full force of the justice system against a private citizen to destroy them, even if they know they won't secure a conviction.

Obviously, the NYPD and Bragg do not necessarily see this incident the same as both took very different action. It's quite possible that evidence that showed Penny committed a crime came out after the initial investigation. It's also possible that the protests demanding Penny's arrest had something to do with the decision.

The Divided Public—

Some have said that NYPD's failure to arrest Penny exposes the department's systemic racism. Neither former NYPD Police Commissioner, now Mayor, Eric Adams, nor his replacement, Keechant L. Sewell has shown a history of systemically racist policies against black people.

NYPD and those who rode the subway knew Neely well. Neely's arrest record showed a history of assaults. And it appears that Neely was on NYPD's list of the 50 homeless people with a urgent needs.  Many claim that the incident highlights the failing mental health system and societal decay of soft-on-crime cities. 

Individual Discretion—

My take away from this is: what if it were you or me in Daniel Penny's situation? Many people in the self defense and concealed carry community train to respond to violence. You train for accuracy, but you also train to identify your target and use discretion in an engagement.

Should you ever have to defend yourself, the police may see things your way, but the district attorney might not.

Your discretion, and the discretion of police and prosecutors, all play a role in how a violent encounter could ultimately play out. There is no surefire defense against prosecutors with a political axe to grind, but you can train, familiarize yourself with the law, and insure yourself so you have every advantage possible, should the worst ever happen to you. 

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About J. Gibson

Technology, history, and criminology geek with more than a decade in physical and digital security roles.


  1. Clark Kent on May 20, 2023 at 6:03 pm

    Let’s cut to the chase. If the suspect in this case was black and the victim was white not only would this event be a big nothingburger in the media but the suspect would have been neither arrested nor charged.

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